Re v. State

• Decision Date: 28 December 2011
• Docket Number: No. S–11–0088.,S–11–0088.
• Parties: In the Interest of RE and Te, minor children:Jo, Appellant (Respondent), v. The State of Wyoming, Department of Family Services, Appellee (Petitioner).
• Court: Wyoming Supreme Court

2011 WY 170

267 P.3d 1092

In the Interest of RE and Te, minor children:Jo, Appellant (Respondent),

v.The State of Wyoming, Department of Family Services, Appellee (Petitioner).

No. S–11–0088.

Supreme Court of Wyoming.

Dec. 28, 2011.

Representing Appellant: Mervin W. Mecklenburg, Mecklenburg Attorney at Law, Yoder, Wyoming.

Representing Appellee: Gregory A. Phillips, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Jared S. Crecelius, Assistant Attorney General. Argument by Mr. Crecelius.

Guardian Ad Litem: Scott M. Powers, Law Office of Scott Powers, Cheyenne, Wyoming.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

BURKE, Justice.

[¶ 1] Appellant, JO, challenges the juvenile court's order directing the Department of Family Services (DFS) to pursue a termination of Appellant's parental rights. She contends there was insufficient evidence to support a change in the permanency goal for her children. She also claims that DFS failed to provide a compelling reason for recommending termination of her parental rights. We affirm.

ISSUES

[¶ 2] Appellant raises the following issues:

1. Was the Department of Family Services required to provide a compelling reason for recommending a permanency plan of termination over relative guardianship under Wyo. Stat. Ann. § 14–3–431(j)?

2. Did the trial court's order that termination proceedings be filed against the Mother lack evidentiary support?

DFS presents the issues as follows:

1. Did the juvenile court comply with the relevant statutes in finding adoption and termination of Mother's parental rights to be the proper permanency plan for the children?

2. Was there sufficient evidence to support the juvenile court's order on permanency finding that adoption and termination of Mother's parental rights were in the children's best interests?

3. Does Mother have standing to raise the issue of Grandmother's constitutional right to a familial relationship with the children?

FACTS

[¶ 3] Appellant is the mother of TE, born in 2007, and RE, born in 2009. The children's father was in prison at all times relevant to this action. His rights are not at issue in this appeal. On May 6, 2009, when RE was approximately three months old, DFS received a report from medical personnel that RE had been diagnosed with “failure to thrive.” When RE was released from the hospital, a social worker from DFS and a public health nurse visited Appellant's home to discuss concerns about the children's care and to schedule medical appointments to monitor RE's health. With regard to RE's physical appearance during this visit, the social worker stated that “He did not look well. He did not look healthy. He was very, very thin. You could see the veins throughout his body. He just—It was almost like he was immobile.” An appointment with a primary care physician was arranged, and Appellant was informed that RE would need to be weighed at a public health clinic twice a week.

[¶ 4] Approximately one week after the initial consultation, the DFS social worker accompanied Appellant to RE's doctor's appointment, where RE was diagnosed with severe bronchitis and failure to thrive. RE was directly admitted into the hospital. While RE was in the hospital, the Torrington Police Department placed both children in protective custody with the children's paternal great uncle and his wife (foster parents).

[¶ 5] The State filed a Petition for Neglect on May 20, 2009. Appellant admitted the allegations at a hearing held on June 2, and the juvenile court entered a decree finding that the children were neglected as defined by Wyo. Stat. Ann. § 14–3–402(a)(xii) (LexisNexis 2007).¹ The court ordered that the children remain in the legal custody of DFS for continued placement in foster care, and that DFS provide visitation opportunities for Appellant, which were to be “increased consistent with the well-being and goal of the children with the objective being reunification when that is in the children's best interest.” The court further ordered Appellant to “cooperate with the DFS in developing a Case Plan designed to insure the health, physical safety and emotional well-being of the minor children,” and ordered Appellant to comply with all the requirements of the case plan. Finally, the court ordered that a multi-disciplinary team (MDT) be appointed to review the children's personal and family history, and to provide recommendations for the care of the children, giving consideration “to the best interests of the child, the best interests of the family, the most appropriate and least restrictive case planning options and the costs of care.”

[¶ 6] Following issuance of the decree, DFS began working on a case plan with Appellant that identified a goal of reunification with her children. At the first MDT meeting, on July 9, 2009, it was noted that RE had gained weight, and that his health had improved significantly under the care of the foster parents. Although Appellant's physician stated that Appellant seemed to be benefiting from medication, he opined that reunification was not yet appropriate and indicated a possible diagnosis of psychosis. At the end of the meeting, the MDT voted in favor of continuing legal custody with DFS and continuing physical custody with the foster parents. The MDT also recommended that Appellant continue with parenting instruction and that she receive a psychological evaluation.

[¶ 7] Over the course of the next twelve months, DFS personnel experienced significant difficulty in procuring Appellant's attendance at scheduled visitations and appointments, and in guiding Appellant's participation during the visitations. On July 19, 2010, an impromptu MDT meeting was held in response to an incident in which Appellant was arrested after a belligerent outburst during a visitation with her children. Appellant's progress as of the time of the meeting was summarized as follows:

[Appellant] has made no progress thus far and we are at 14 months. Interactions between [Appellant] and the kids are severely limited and her main focus still is with [TE] while [RE] fends for himself. [Appellant] refuses any constructive criticism to try to help her improve her parenting, even when it comes to providing healthy snacks for the kids. DFS tried even approaching [Appellant's] attorney so it wasn't coming from DFS. [Appellant] continues to make false allegations regarding the foster parents alleging bruising that is noted by a doctor as normal age appropriate bruising. [Appellant] is inappropriate and rude to staff. On July 2^nd, [Appellant] had an inappropriate outburst at DFS that resulted in the Torrington PD being called and [Appellant] was arrested. Visitations since then were moved to the Torrington PD due to safety concerns.

During the MDT meeting, Appellant's attorney asserted that visitation was not in Appellant's best interest and requested that visitation be stopped. At the end of the meeting, the MDT was evenly divided between a recommendation to terminate Appellant's parental rights and a recommendation to pursue a guardianship with the foster parents. The children's guardian ad litem abstained from voting because he was new to the case.

[¶ 8] Approximately three months later, the juvenile court held a permanency hearing pursuant to Wyo. Stat. Ann. § 14–3–431(d) to determine which permanency plan was in the best interests of Appellant's children. Between the time of the final MDT meeting and the permanency hearing, Appellant had no visits with her children, although her parents continued to see the children. At the permanency hearing, the court heard testimony from three DFS social workers involved in Appellant's case, as well as from two psychologists who had evaluated Appellant. Appellant did not testify at the hearing, but she conceded through counsel that she was “not able to reunify with her children at this time.” At the conclusion of the hearing, the juvenile court found that termination of Appellant's parental rights was appropriate. The court summarized its findings as follows:

In looking at the track record in this case, the Court understands that [Appellant] claims for the last three months this [referring to the children's visitations with Appellant's parents] has worked out well, so why not leave it the way it is.

The track record here indicates that that's not likely to continue. In fact, after today's hearing, I will suspect that it would begin again for her to undermine and disagree, and I heard the word “sabotage,” or disrupt the stability and permanency for these children.

So the Court finds it appropriate, or the court finds that the state has outlined [its] efforts for reunification, and they were exemplary. The Court finds that the state considered options of kinship placement or some kind of guardianship or termination, and it explained well [its] reasons for selecting the goal of termination; and the Court finds that to be appropriate.

The court subsequently issued an order incorporating the findings set forth above and ordering that “the goal be changed from reunification to termination of the parental rights for the mother of the minor children.” This appeal followed.

STANDARD OF REVIEW

[¶ 9] We have had few occasions to review orders such as the one at issue here. On those occasions where we did conduct such a review, we did not articulate a standard of review that would be applicable here. For example, in HP v. State, 2004 WY 82, 93 P.3d 982 (Wyo.2004), we reviewed a dispositional order requiring DFS to proceed with a permanency plan similar to the one adopted by the juvenile court in this case. We applied a sufficiency of the evidence review:

We understand Mother's argument to challenge the sufficiency of the evidence supporting the juvenile court's findings. When reviewing a record for sufficient evidence to sustain a finding of neglect, we:

1. Give considerable deference to the trial court's...